Well, on the plus-side today has seen Lib Dems members united in a way I can’t recall since the heady days of the formation of the Coalition in May 2010. On the minus-side, it’s mostly been in disbelief and anger at the party leadership for appearing to sign-up to an extension of interception of communications (‘web-snooping’ as it’s become catchily known).

I don’t feel angry. Not because I don’t care about civil liberties — I do — but because there are genuinely difficult and complex issues at play here which deserve and need rational thought, which I prefer to do with a clear head. In case there are others like me, here are my thought processes…

How do we secure freedom for our citizens?

Two statements are oft-quoted by Lib Dems on the issue of civil liberties. The first, which headlines Alex Wilcock’s post, is Clarence Henry Willcock’s declaration when he refused to show his identity card to a British policeman on 7 December 1950:

I am a liberal and I am against this sort of thing.

The second is Benjamin Franklin’s aphorism:

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

They are both fantastic statements: Willcock’s gorgeously understated, stubborn chippiness when faced with liberty-infringing jobsworth bureaucracy, and Franklin’s ringing, grandiloquent warning to rulers looking for expedient sacrifice of principle for a comfortable life.

However, neither Willcock nor Franklin get us very far in this debate.

First, what Willcock was against — being required to show a card to authority for no reason other than to prove his existence to the state — is not what has been suggested: the end of the last Labour government put paid to that. Secondly, while being against something is quite often a useful way of defining your position it is not in itself sufficient: no opposition without proposition. The proposition ‘Do nothing’ is of course an option, but still needs to have an underpinning rationale.

Which brings me to Franklin, and — for me — the nub of this debate. Because the reality is that we — citizens, society, government — do trade liberty for security. We do it all the time. In order to safeguard our freedoms we have secret services and passport-checks and counter-terrorism units and border controls and so on. These are, to one degree or another, accepted as a necessary price to pay for our security from threats both internal and external. The key question — one which very often divides in politics, as we’ve so very clearly seen today – is where that line is drawn.

And that’s where I think some clear calm logic needs to be applied.

Not letting the buggers get us down

The government case in favour of extending interception of communications is straightforward: the law was created before the recent technological advances such as social media and smartphones and Skype, so all the new legislation will do is bring these communication methods into line with those that exist already for letter, email, phone etc.

There are two lines of argument against this, but they’ve often become conflated in the debate over the last 36 hours:

1) In principle opposition: quite simply, such snooping is wrong, period. In which case, we should follow the logic of this argument and advocate rolling back the law and prevent any other form of interception of communications. This would of course conflict with the Lib Dems’ long-held views that there should be more use of intercept evidence in courts to prevent detention without trial being necessary.

2) In practice opposition: first, internet service providers do not log details of every Facebook chat or Twitter DM as they have no need of the data to bill customers — so the government will have to pay them to provide it, something the ISPs themselves don’t much like, and which the Lib Dem conference voted against just a few weeks ago. A second, more significant, concern is that the data stored may reveal the content of the message — indeed that there may be no way at all technically of distinguishing between online traffic data and its content — which would be the equivalent of permitting the bugging of every person’s telephone as opposed simply to recording an inventory of which calls were made when and between whom.

For me, these practical objections are much more compelling arguments against the proposals, and why I couldn’t support them as they stand. But, to be absolutely clear, practical objections to the proposal are in a very different category to in principle objections — because practical objections may be surmountable if the technology is up to the job (or they may not be).

Whatever the actual proposals — still unknown — there are clear needs for safeguards, not only of any new proposals but also for the existing powers of communications interception which exist within the Investigation of Regulatory Powers Act (RIPA), 2000. Julian Huppert’s article on LibDemVoice offers a good list of which I would say the key is the first proposal:

ensuring that there shall be no interception of telephone calls, SMS messages, social media, internet or any other communications without named, specific and time-limited warrants.

These warrants — for any form of content disclosure to the authorities — must have (as they do now) an interception warrant approved ultimately by the Home Secretary, and overseen by the Interception of Communications Commissioner.

We need RIPA reform

There has been (and this is an understatement) huge negative publicity generated towards the Coalition — and specifically the Lib Dems as the Coalition’s most reliable guarantors of freedom — by the last couple of days’ news. So I want to conclude on a positive note: I genuinely hope the Government presses ahead with revising RIPA.

Let’s not forget amid the current sound and fury that this piece of Labour legislation is in desperate need of updating to prevent its casual use by councils as promised in the Coalition Agreement — for example, in order to prevent town halls misusing their powers to snoop on their own staff. Liberals have been campaigning for many years to reform RIPA — examples here (Chris Ward) and here (Terry Stacy) and here (Howard Sykes) — and it would be a shame to lose this chance to make a bad law better.

35 comments

I think you’re right to split this into matters of principle and practicality, and I agree with your assessment of the practical opposition.

Looking at the principle, then. If we start from the position that the retention of people’s data is an infringement on their liberty and therefore must be justified.

It is my view that the current policy – both from RIPA and the EU Data Retention Directive – tilts the balance too far away from liberty/privacy, and that, at least to a certain extent, forms an unjustified infringement on people’s liberty.

The argument, then, that this new proposal simple “updates” the current policy is, to say the least, rather unconvincing. First because it implicitly acknowledges that the status quo has the balance about right (which, after 13 years of an authoritarian Labour government, I find it difficult to argue).

And secondly because to claim that this “update” doesn’t represent a further tilting of the balance seems to me to be rather disingenuous. How can it be right that the retention of vastly more data by private companies for use by the state does not represent a further infringement of our freedom?

I totally take your point about the liberty-security balance being a difficult one, and I am as unimpressed by the unrealistic arguments of some as you are. But if one starts from the premise, as I do, that the situation we inherited when we came into government was one in which we needed to roll back to surveillance state, not just keep it at its current level, then I find it difficult to see how one can argue that this move is an unobjectionable one.

In answer to 1, the difference would be that to gather intercept evidence at the moment, the police need to go to a judge and present a prima facie case that the person they wish to bug has committed or is planning to commit a crime. Only then can they start recording.

This, on the other hand, assumes that everyone is guilty of something (or hanging out with someone suspicious) and experts the ISPs to gather up the data until the thought police come to ask for it.

All valid points and heavily against. Just to supplement: On the practical side, the reason records exist in the first place, in most cases but not all, is to provide the ability to bill people and provide a service for when things go wrong. Or at least that’s how they first came into existence. That hasn’t changed much over the years. They don’t always do this basic task properly, as to may have experienced.

When services are provided to the consumer for free, like many newer ones and to provide anonymity, it completely goes against why such a service exists in the first place if you then force such services to keep records, none of which adhere to a standard and are all independently developed.

We’re a tiny island. Why should a big global bend to our government’s demands for something that’s available everywhere else without this need?

Richard is quite correct : requiring evidence to get a warrant before interception begins does not contradict lib dem proposal for using interception evidence.

Further this data retention is mass surveillance and that should be opposed by liberals in principle.

Finally the government and liberal democrats have been told repeatedly by those of us in the industry that it is unworkable: not only is it expensive and ineffective, its prone to abuse and criminal access. The idea is technically flawed as it requires deep packet inspection as you will have to decrypt and view everything to extract the information you need, worse you will need to keep all of it if you don’t recognise the format or protocol and want to extract info later.

We have every reason to be angry:
* you missed another important quote: passing laws that enable tyrants is bad civic hygene, Bruce Schneir
* Lynne featherstone and the party leadership are insulting our intelligence with their emails and statements.
* this is not about modernizing to deal with new tech, its extending tracking to include more information and widening the net when we should be making it smaller.

Please don’t try to argue this is a chance to improve things : this yet another turd sandwich of legislation and lib dems are claiming once again they can remove most of the poop and turn it into a michellin star dish when they should be throwing it away and starting with fresh ingredients : same mistakes as with #deact and #nhsbill and we will get the same bad results and terrible legislation and waste of money when they attempt to implement it.

The reason I split it into two categories – principled opposition and pracyical opposition – is to tease out the concerns, and whether there are practical safeguards that may be put in place.

From your comments I’d draw out the following minimum safeguards that must be upheld:

1) There must be a specific serious crime with prima facie evidence which it is believed the data could help prevent or lead to the prosecution of the suspect;
2) There must be a signed warrant from Home Sec or chief constable for disclosure of any data content;
3) There must be independent judicial oversight of the warrant process.

These don’t tackle the practical problems associated with the proposals – eg, is it technolocically possible to split traffic data from traffic content – but I’d be interested to know if these respond to the principled objections people have.

Your point 1 – on the principle – is overstated. It is quite possible to believe, as I do, that the current and proposed powers go too far, while still believing that properly obtained interecpt evidence should be used in court as far as possible.

In fact it is quite possible for the to be less general snooping and more evidence presented in court, albeit from a smaller number of cases.

Another issue worth noting is that the arguments supporting this new surveillance are the same used to justify using torture, they don’t justify either.

Worse : if we did implement this, as with torture it would provide excuses and justification for oppressive regimes to roll out increased surveillance of their citizens, and any technology we design or use will be sold to or copied by them and used to oppress their people

“These don’t tackle the practical problems associated with the proposals – eg, is it technolocically possible to split traffic data from traffic content – but I’d be interested to know if these respond to the principled objections people have.”

A) It’s been made clear repeatedly that it’s not technically possible to split traffic headers from content, I wish you’d stop pretending there was any doubt.

B) No – the objections remain that pre-emptive mass surveilance is wrong in principle, outsourcing the database of everybody’s communication to ISPs instead of the security services changes nothing : If there is a case, then you get a warrant and you start intercepting – simple, no need for keeping a massive database of anything

Those would be good safeguards, but don’t really address my principled objection which is that, whatever safeguards are in place, this move would represent a massive increase in the amount of private data held about every single person in the country.

And the point I forgot to mention was about whether the fact that this data is held centrally or by individual companies makes a difference. I would say it does, but only a small one. I’m not primarily concerned with where or in what sort of system all this data of mine is being held, but more with the fact that it’s being held in the first place.

“From your comments I’d draw out the following minimum safeguards that must be upheld …”

This would still allow communications data (including things like the recipients of emails and the addresses of websites visited) to be seen without a warrant by a wide range of public officials.

I realise that is already the situation (though there are plans to end access by local authorities), but I don’t understand why it should be considered acceptable by liberals. And the fact that it’s the case for some forms of communication is no justification for extending it to others.

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